Attorney accuses Aurora cops of entrapment

Defendants' lawyer blames officers in drug case

A defense attorney last week alleged Aurora police violated the Illinois Controlled Substances Act by using confiscated cocaine to conduct a reverse buy that she said entrapped two of her clients.

In a motion filed Feb. 6, Kathleen Colton also questioned whether police can account for all 5 kilograms of the confiscated cocaine. She asked the court to dismiss the charges against her clients, who are cousins, and appoint a special prosecutor to look into the matter.

Circuit Judge Grant Wegner scheduled a hearing for Feb. 26.

"She is going to ask for a full-fledged evidentiary hearing," Assistant Kane County State's Atty. Robert Berlin said. "I don't think it will get that far."

"The police have done absolutely nothing wrong," he said. He said reverse buys, in which police sell drugs to suspects and then arrest them, "have been approved and upheld by reviewing courts."

In her motion, Colton says Juvenal Martinez, 22, and Froilan Martinez, 24, both of the 1800 block of Lilac Lane, Aurora, would not have thought of dealing cocaine had police not approached them. Each of them has been charged with drunken driving in the past, but neither has any other criminal history, she said.

"Neither of the men is a drug user," Colton said. "I don't know how the cops found them. This is the kind of situation that cries out for an entrapment defense."

The cousins, Mexican immigrants who worked at a plant nursery, were arrested Nov. 12 near a fast-food restaurant on the 2100 block of West Galena Boulevard. Each was charged with unlawful possession of a controlled substance with the intent to deliver, and Froilan Martinez also was charged with armed violence.

According to police documents, Froilan Martinez took a handgun from his waist and threw it to the ground when officers approached him.

Juvenal Martinez was being held in lieu of $250,000 bail at the McHenry County Jail, which houses some inmates awaiting trial in Kane. Froilan Martinez was being held in McHenry in lieu of $500,000 bail.

Also charged at the same time with unlawful possession of a controlled substance with the intent to deliver were Carmen Rivera, 27, of the 900 block of North Highland Avenue, and Roberto Sanchez, 25, of the 600 block of Wood Street, both of Aurora. Colton does not represent Rivera or Sanchez.

Colton said in a phone interview that an undercover officer approached the Martinez cousins on Sept. 27 and told them they could make $1,000 apiece if they found a buyer for a kilo of cocaine.

When the Martinezes went with the officer to the restaurant on Nov. 12, Rivera and Sanchez allegedly arrived with $18,000 to buy the cocaine, she said. All four were then arrested.

The kilo used in the reverse buy was part of 5 kilos taken when five men were arrested on Jan. 22, 2001, she said. All five have pleaded guilty, she said.

Colton further alleged in her complaint that the Controlled Substances Act does not authorize a police officer "to possess with the intent to manufacture or deliver a controlled substance." She called the actions of police "outrageous governmental misconduct, by virtue of the police dealing cocaine on the streets of Aurora."

But Berlin said the Controlled Substances Act specifically allows police officers to possess drugs covered by the act in the course of their duties. The statute grants an exemption to "officers and employees of this state or of the United States while acting in the lawful course of their official duties."

Colton also said less than 3 of the 5 initial kilograms removed from evidence for the reverse buy is accounted for in police reports she subpoenaed.

Police Chief William Lawler, however, said all of the cocaine is accounted for.